SUBCHAPTER VII.-MISCELLANEOUS

PROVISIONS

§ 521. Investigations by Secretary; applicability of other laws.

(a) The Secretary shall have power when he believes it necessary in order to determine whether any person has violated or is about to violate any provision of this chapter (except subchapter II of this chapter) to make an investigation and in connection therewith he may enter such places and inspect such records and accounts and question such persons as he may deem necessary to enable him to determine the facts relative thereto. The Secretary may report to interested persons or officials concerning the facts required to be shown in any report required by this chapter and concerning the reasons for failure or refusal to file such a report or any other matter which he deems to be appropriate as a result of such an investigation.

(b) For the purpose of any investigation provided for in this chapter, the provisions of sections 49 and 50 of Title 15 (relating to the attendance of witnesses and the production of books, papers, and documents), are made applicable to the jurisdiction, powers, and duties of the Secretary or any officers designated by him. (Pub. L. 86-257, title VI, § 601, Sept. 14, 1959, 73 Stat. 539.)

§ 522. Extortionate picketing; penalty for violation.

(a) It shall be unlawful to carry on picketing on or about the premises of any employer for the purpose of, or as part of any conspiracy or in furtherance of any plan or purpose for, the personal profit or enrichment of any individual (except a bona fide increase in wages or other employee benefits) by taking or obtaining any money or other thing of value from such employer against his will or with his consent.

(b) Any person who willfully violates this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both. (Pub. L. 86257, title VI, § 602, Sept. 14, 1959, 73 Stat. 539.)

§ 523. Retention of rights under other Federal and State laws.

(a) Except as explicitly provided to the contrary, nothing in this chapter shall reduce or limit the responsibilities of any labor organization or any officer, agent, shop steward, or other representative of a labor organization, or of any trust in which a labor organization is interested, under any other Federal law or under the laws of any State, and, except as explicitly provided to the contrary, nothing in this chapter shall take away any right or bar any remedy to which members of a labor organization are entitled under such other Federal law or law of any State.

(b) Nothing contained in this chapter and section 186 (a-c) of this title shall be construed to supersede or impair or otherwise affect the provisions of the Railway Labor Act, as amended, or any of the obligations, rights, benefits, privileges, or immunities of any carrier, employee, organization, representative, or person subject thereto; nor shall anything contained in this chapter be construed to confer any rights, privileges, immunities, 22-992 0-64-vol. 2

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or defenses upon employers, or to impair or otherwise affect the rights of any person under the National Labor Relations Act, as amended. (Pub. L. 86-257, title VI, § 603, Sept. 14, 1959, 73 Stat. 540.)

REFERENCES IN TEXT

"This chapter", referred to in subsec. (a), was in the original "this Act", meaning Pub. L. 86-257 which added this chapter and amended sections 153, 158, 159, 160, 164, 186, and 187 of this title.

The Railway Labor Act, as amended, referred to in subsec. (b), is classified to chapter 8 of Title 45, Railroads. The National Labor Relations Act, as amended, referred to in subsec. (b), is classified to sections 151-158 and 159-167 of this title.

§ 524. Effect on State laws.

Nothing in this chapter shall be construed to impair or diminish the authority of any State to enact and enforce general criminal laws with respect to robbery, bribery, extortion, embezzlement, grand larceny, burglary, arson, violation of narcotics laws, murder, rape, assault with intent to kill, or assault which inflicts grievous bodily injury, or conspiracy to commit any of such crimes. (Pub. L. 86-257, title VI, § 604, Sept. 14, 1959, 73 Stat. 540.)

REFERENCES IN TEXT

"This chapter", referred to in the text, was in the original "this Act", meaning Pub. L. 86-257 which added this chapter and amended sections 153, 158, 159, 160, 164, 186, and 187 of this title.

§ 525. Service of process.

For the purposes of this chapter, service of summons, subpena, or other legal process of a court of the United States upon an officer or agent of a labor organization in his capacity as such shall constitute service upon the labor organization. (Pub. L. 86-257, title VI, § 605, Sept. 14, 1959, 73 Stat. 540.) REFERENCES IN TEXT

"This chapter", referred to in the text, was in the original "this Act", meaning Pub. L. 86-257 which added this chapter and amended sections 153, 158, 159, 160, 164, 186, and 187 of this title.

§ 526. Applicability of Administrative Procedure Act. The provisions of the Administrative Procedure Act shall be applicable to the issuance, amendment, or rescission of any rules or regulations, or any adjudication authorized or required pursuant to the provisions of this chapter. (Pub. L. 86-257, title VI, § 606, Sept. 14, 1959, 73 Stat. 540.)

REFERENCES IN TEXT

"This chapter", referred to in the text, was in the original "this Act", meaning Pub. L. 86-257 which added this chapter and amended sections 153, 158, 159, 160, 164, 186 and 187 of this title.

The Administrative Procedure Act, referred to in the text, is classified to chapter 19 of Title 5, Executive Departments and Government Officers and Employees.

§ 527. Cooperation with other agencies and depart

ments.

In order to avoid unnecessary expense and duplication of functions among Government agencies, the Secretary may make such arrangements or agreements for cooperation or mutual assistance in the performance of his functions under this chapter and the functions of any such agency as he may find

to be practicable and consistent with law. The Secretary may utilize the facilities or services of any department, agency, or establishment of the United States or of any State or political subdivision of a State, including the services of any of its employees, with the lawful consent of such department, agency, or establishment; and each department, agency, or establishment of the United States is authorized and directed to cooperate with the Secretary and, to the extent permitted by law, to provide such information and facilities as he may request for his assistance in the performance of his functions under this chapter. The Attorney General or his representative shall receive from the Secretary for appropriate action such evidence developed in the performance of his functions under this chapter as may be found to warrant consideration for criminal prosecution under the provisions of this chapter or other Federal law. (Pub. L. 86257, title VI, § 607, Sept. 14, 1959, 73 Stat. 540.)

REFERENCES IN TEXT

"This chapter", referred to in the text, was in the original "this Act", meaning Pub. L. 86-257 which added this chapter and amended sections 153, 158, 159, 160, 164, 186, and 187 of this title.

§ 528. Criminal contempt.

No person shall be punished for any criminal contempt allegedly committed outside the immediate presence of the court in connection with any civil action prosecuted by the Secretary or any other person in any court of the United States under the provisions of this chapter unless the facts constituting such criminal contempt are established by the verdict of the jury in a proceeding in the district court of the United States, which jury shall be chosen and empaneled in the manner prescribed by the law governing trial juries in criminal prosecutions in the district courts of the United States. (Pub. L. 86-257, title VI, § 608, Sept. 14, 1959, 73 Stat. 541.)

REFERENCES IN TEXT

"This chapter", referred to in the text, was in the original "this Act", meaning Pub. L. 86-257 which added this chapter and amended sections 153, 158, 159, 160, 164, 186, and 187 of this title.

§ 529. Prohibition on certain discipline by labor organization.

It shall be unlawful for any labor organization, or any officer, agent, shop steward, or other representative of a labor organization, or any employee thereof to fine, suspend, expel, or otherwise discipline any of its members for exercising any right to which he is entitled under the provisions of this chapter. The provisions of section 412 of this title shall be applicable in the enforcement of this section. (Pub. L. 86-257, title VI, § 609, Sept. 14, 1959, 73 Stat. 541.)

REFERENCES IN TEXT

"This chapter", referred to in the text, was in the original "this Act", meaning Pub. L. 86-257 which added this chapter and amended sections 153, 158, 159, 160, 164, 186, and 187 of this title.

§ 530. Deprivation of rights by violence; penalty.

It shall be unlawful for any person through the use of force or violence, or threat of the use of force or violence, to restrain, coerce, or intimidate, or attempt to restrain, coerce, or inimidate any member of a labor organization for the purpose of interfering with or preventing the exercise of any right to which he is entitled under the provisions of this chapter. Any person who willfully violates this section shall be fined not more than $1,000 or imprisoned for not more than one year, or both. (Pub. L. 86-257, title VI, § 610, Sept. 14, 1959, 73 Stat. 541.)

REFERENCES IN TEXT

"This chapter", referred to in the text, was in the original "this Act", meaning Pub. L. 86-257 which added this chapter and amended sections 153, 158, 159, 160, 164, 186, and 187 of this title.

§ 531. Separability provisions.

If any provision of this chapter or the application of such provision to any person or circumstances, shall be held invalid, the remainder of this chapter or the application of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby. (Pub. L. 86257, title VI, § 611, Sept. 14, 1959, 73 Stat. 541.)

REFERENCES IN TEXT

"This chapter", referred to in the text, was in the original "this Act", meaning Pub. L. 86-257 which added this chapter and amended sections 153, 158, 159, 160, 164, 186, and 187 of this title.

Trial examiner's decision.

101.12.

Settlement after issuance of complaint. Hearings.

Board decision and order.

101.13. Compliance with Board decision and order. 101.14. Judicial review of Board decision and order. 101.15. Compliance with court decree. 101.16.

Back-pay proceedings.

SUBPART C.-REPRESENTATION CASES UNDER SECTION 9(c) OF THE ACT

Sec.

101.34. Hearing. 101.35.

101.36.

Procedure before the Board.

Compliance with determination; further proceedings.

SUBPART G.-PROCEDURE UNDER SECTION 10 (1) AND (1) OF THE ACT

101.37. Application for temporary relief or restraining orders.

101.38.

Change of circumstances.

SUBPART H.-DECLARATORY ORDERS AND ADVISORY OPINIONS REGARDING BOARD JURISDICTION

101.39. Initiation of advisory opinion case.

101.40.

101.41.

101.42.

Proceedings following the filing of the petition. Informal procedures for obtaining opinions on jurisdictional questions.

Procedures for obtaining declaratory orders of the Board.

101.43. Proceedings following the filing of the petition. AUTHORITY: §§ 101.1 to 101.43 issued under 49 Stat. 449; 29 U.S.C. 151-168; and Act of September 14, 1959 (Pub. Law 86-257; 73 Stat. 519).

SUBPART A.-GENERAL STATEMENT

§ 101.1. General statement.

By virtue of the authority vested in it by section 6 of the National Labor Relations Act, 49 Stat. 449, as amended, the National Labor Relations Board has issued and published simultaneously herewith its Rules and Regulations, Series 8. The following statements of the general course and method by which the Board's functions are channeled and determined are issued and published pursuant to section 3(a) (2) of the Administrative Procedure Act.

SUBPART B.-UNFAIR LABOR PRACTICE CASES UNDER SECTION 10 (a) тo (i) OF THE ACT AND TELEGRAPH MERGER ACT CASES

§ 101.2. Initiation of unfair labor practice cases.

The investigation of an alleged violation of the National Labor Relations Act is initiated by the filing of a charge, which must be in writing and signed, and must either be notarized or must contain a declaration by the person signing it, under the penalties of the Criminal Code, that its contents are true and correct to the best of his knowledge and belief. The charge is filed with the regional director for the region in which the alleged violations have occurred or are occurring. A blank form for filing such charge is supplied by the regional office upon request. The charge contains the name and address of the person against whom the charge is made and a statement of the facts constituting the alleged unfair labor practices.

§ 101.3. Note

This section, which in Series 7 of the Statements of Procedure related to the filing requirements of section 9 (f), (g), and (h) of the Labor Manage

Page 1663

ment Relations Act, was eliminated by amendments effective September 14, 1959. To avoid the renumbering of §§ 101.4 to 101.21 the Board has left this section number blank.

§ 101.4. Investigation of charges.

When the charge is received in the regional office it is filed, docketed, and assigned a case number. The regional director may cause a copy of the charge to be served upon the person against whom the charge is made, but timely service of a copy of the charge within the meaning of the proviso to section 10(b) of the act is the exclusive responsibility of the charging party and not of the general counsel or his agents. The regional director requests the person filing the charge to submit promptly evidence in its support. As part of the investigation hereinafter mentioned, the person against whom the charge is filed, hereinafter called the respondent, is asked to submit a statement of his position in respect to the allegations. The case is assigned to a member of the field staff for investigation, who interviews representatives of the parties and other persons who have knowledge as to the charges, as is deemed necessary. In the investigation and in all other stages of the proceedings, charges alleging violation of section 8(b) (4) (A), (B), and (C), charges alleging violation of section 8(b) (4) (D) in which it is deemed appropriate to seek injunctive relief under section (10) (1) of the act, and charges alleging violations of section 8(b) (7) or 8(e) are given priority over all other cases in the office in which they are pending except cases of like character; and charges alleging violation of section 8(a)(3) or 8(b) (2) are given priority over all other cases except cases of like character and cases under section 10(1) of the act. The regional director may in his discretion dispense with any portion of the investigation described in this section as appears necessary to him in consideration of such factors as the amount of time necessary to complete a full investigation, the nature of the proceeding, and the public interest. After investigation, the case may be disposed of through informal methods such as withdrawal, dismissal, and settlement; or, the case may necessitate formal methods of disposition. Some of the informal methods of handling unfair labor practice cases will be stated first.

§ 101.5. Withdrawal of charges.

If investigation reveals that there has been no violation of the National Labor Relations Act or the evidence is insufficient to substantiate the charge, the regional director recommends withdrawal of the charge by the person who filed. The complainant may also, on its own initiative, request withdrawal. If the complainant accepts the recommendation of the director or requests withdrawal on its own initiative, the respondent is immediately notified of the withdrawal of the charge.

§ 101.6. Dismissal of charges and appeals to general counsel.

If the complainant refuses to withdraw the charge as recommended, the regional director dismisses the charge. The regional director thereupon in

forms the parties of his action, together with a simple statement of the grounds therefor, and the complainant of his right of appeal to the general counsel in Washington, D.C., within 10 days. If the complainant appeals to the general counsel, the entire file in the case is sent to Washington, D.C., where the case is fully reviewed by the general counsel with the assistance of his staff. Following such review, the general counsel may sustain the regional director's dismissal, stating the grounds of his affirmance, or may direct the regional director to take further action.

§ 101.7. Settlements.

Before any complaint is issued or other formal action taken, the regional director affords an opportunity to all parties for the submission and consideration of facts, argument, offers of settlement, or proposals of adjustment, except where time, the nature of the proceeding, and the public interest do not permit. Normally prehearing conferences are held, the principal purpose of which is to discuss and explore such submissions and proposals of adjustment. The regional office provides Board-prepared forms for such settlement agreements, as well as printed notices for posting by the respondent. These agreements, which are subject to the approval of the regional director, provide for an appeal to the general counsel, as described in § 101.6, by a complainant who will not join in a settlement or adjustment deemed adequate by the regional director. Proof of compliance is obtained by the regional director before the case is closed. If the respondent fails to perform his obligations under the informal agreement, the regional director may determine to institute formal proceedings.

§ 101.8. Complaints.

If the charge appears to have merit and efforts to dispose of it by informal adjustment are unsuccessful, the regional director institutes formal action by issuance of a complaint and notice of hearing. In certain types of cases, involving novel and complex issues, the regional director, at the discretion of the general counsel, must submit the case for advice from the general counsel before issuing complaint. The complaint, which is served on all parties, sets forth the facts upon which the Board bases its jurisdiction and the facts relating to the alleged violations of law by the respondent. The respondent must file an answer to the complaint within 10 days of its receipt, setting forth a statement of its defense.

§ 101.9. Settlement after issuance of complaint.

(a) Even though formal proceedings have begun, the parties again have full opportunity at every stage to dispose of the case by amicable adjustment and in compliance with the law. Thus, after the complaint has been issued and a hearing scheduled or even begun, the attorney in charge of the case and the regional director afford all parties every opportunity for the submission and consideration of facts, argument, offers of settlement, or proposals of adjustment, except where time, the nature of the proceeding, and the public interest do not permit.

(b) All settlement stipulations which provide for the entry of an order by the Board are subject to the approval of the Board in Washington, D.C. If the settlement provides for the entry of an order by the Board, the parties agree to waive their right to hearing and agree further that the Board may issue an order requiring the respondent to take action appropriate to the terms of the adjustment. Usually the settlement stipulation also contains the respondent's consent to the Board's application for the entry of a decree by the appropriate circuit court of appeals enforcing the Board's order.

(c) In the event the respondent fails to comply with the terms of a settlement stipulation, upon which a Board order and court decree are based, the Board may petition that court to adjudge the respondent in contempt. If the respondent refuses to comply with the terms of a stipulation settlement providing solely for the entry of a Board order, the Board may petition the court for enforcement of its order, pursuant to section 10 of the National Labor Relations Act.

§ 101.10. Hearings.

(a) Except in extraordinary situations the hearIng is open to the public and usually conducted in the region where the charge originated. A duly designated trial examiner presides over the hearing. The Government's case is conducted by an attorney attached to the Board's regional office, who has the responsibility of presenting the evidence in support of the complaint. The rules of evidence applicable in the district courts of the United States under the Rules of Civil Procedure adopted by the Supreme Court are, so far as practicable, controlling. Counsel for the general counsel, all parties to the proceeding, and the trial examiner have the power to call, examine, and cross-examine witnesses and to introduce evidence into the record. They may also submit briefs, engage in oral argument, and submit proposed findings and conclusions to the trial examiner. The attendance and testimony of witnesses and the production of evidence material to any matter under investigation may be compelled by subpena.

(b) The functions of all trial examiners and other Board agents or employees participating in decisions in conformity with section 8 of the Administrative Procedure Act are conducted in an impartial manner and any such trial examiner, agent, or employee may at any time withdraw if he deems himself disqualified because of bias or prejudice. The Board's attorney has the burden of proof of violations of section 8 of the National Labor Relations Act and section 222(f) of the Telegraph Merger Act. In connection with hearings subject to the provisions of section 7 of the Administrative Procedure Act:

(1) No sanction is imposed or rule or order issued except upon consideration of the whole record or such portions thereof as may be cited by any party and as supported by and in accordance with the preponderance of the reliable probative, and substantial evidence;

(2) Every party has the right to present his case or defense by oral or documentary evidence, to sub

mit rebuttal evidence, and to conduct such crossexamination as may be required for a full and true disclosure of the facts; and

(3) Where any decision rests on official notice of a material fact not appearing in the evidence in the record, any party is on timely request afforded a reasonable opportunity to show the contrary. § 101.11. Trial examiner's decision.

(a) At the conclusion of the hearing the trial examiner prepares a decision stating findings of fact and conclusions, as well as the reasons for his determinations on all material issues, and making recommendations as to action which should be taken in the case. The trial examiner may recommend dismissal or sustain the complaint, in whole or in part, and recommend that the respondent cease and desist from the unlawful acts found and take action to remedy their effects.

(b) The trial examiner's decision is filed with the Board in Washington, D.C., and copies are simultaneously served on each of the parties. At the same time the Board, through its executive secretary, issues and serves on each of the parties an order transferring the case to the Board. The parties may accept and comply with the recommendations of the trial examiner, and thus normally conclude the entire proceedings at this point. Or, the parties or counsel for the Board may file exceptions to the trial examiner's decision with the Board. Whenever any party files exceptions, any other party may file an answering brief limited to questions raised in the exceptions and/or may file cross-exceptions relating to any portion of the trial examiner's decision. Cross-exceptions may be filed only by a party who has not previously filed exceptions. Whenever any party files cross-exceptions, any other party may file an answering brief to the cross-exceptions. The parties may request permission to appear and argue orally before the Board in Washington, D.C. They may also submit proposed findings and conclusions to the Board.

§ 101.12. Board decision and order.

(a) If any party files exceptions to the trial examiner's decision, the Board, with the assistance of the legal assistants to each Board member who function in much the same manner as law clerks do for judges, reviews the entire record, including the trial examiner's decision and recommendations, the exceptions thereto, the complete transcript of evidence, and the exhibits, briefs, and arguments. The Board does not consult with members of the trial examining staff or with any agent of the general counsel in its deliberations. It then issues its decision and order in which it may adopt, modify, or reject the findings and recommendations of the trial examiner. The decision and order contains detailed findings of fact, conclusions of law, and basic reasons for decision on all material issues raised, and an order either dismissing the complaint in whole or in part or requiring the respondent to cease and desist from its unlawful practices and to take appropriate affirmative action.

(b) If no exceptions are filed to the trial examiner's decision, and the respondent does not comply